AiW Guest: Dustin Zacks.
The American Law and Literature movement consistently draws discussion material from the same wells. Consider a cursory search of just one database, HeinOnline, commonly used to browse American law reviews: one could spend countless hours perusing scholars’ various takes on Shakespeare, Kafka, or Camus’ relevance to legal minds and debates. Kafka, for example, is mentioned in a 2009 study as being cited in 373 federal and court opinions. Yet legal academia rarely, if ever, publishes in-depth examinations of prominent African authors whose works are readily available in English. This is not to say that legal issues facing Africa are ignored: on one hand, Somalia’s plight and the law of “humanitarian intervention” is discussed in innumerable scholarly papers. But not more than a small handful of those commenting have seen fit to discuss Nuruddin Farah’s evocative depictions of Siad Barre’s dictatorship in his “Variations on the Theme of an African Dictatorship” trilogy, or his “Blood in the Sun” series of novels exploring the country’s slide into anarchy, with anything more than a passing mention. Likewise, core aspects of Kenya’s nationhood and governance are much remarked upon: articles on minority rights, gender issues, and political pluralism are all widely available, yet again, relatively few comprehensive analyses of the contributions of Ngugi Wa Thiong’o, for example, let alone other prominent Kenyan authors, to legal discussions are likely to be found.
What explains the lack of extensive examination of African literature in American legal academia? Two primary reasons can be argued for the comparative lack of depth: first, some lawyers and law professors will never accept the proposition that literature is valuable despite being something not referenced for what James Boyd White, leading voice in law and literature scholarship, called “findings,” – that is to say, some legal scholars reference non-legal texts only if those texts may empirically prove out a legal or theoretical assertion. Accordingly, those scholars might not find value in any author’s fictional depictions of legal structures or themes, whether African or not.
Secondly, one can argue that this lack of examination is a legacy of pre-university American literature education. One scarcely has to glance through the suggested reading list for the National Advanced Placement course in literature, with apparently only one Chinua Achebe novel representing the entire African continent, to understand that American High School teachers are, by and large, not teaching African novels or dramas. Small surprise, then, that even leading American legal minds have not typically discussed African works in a comprehensive manner.
Law students miss out when their teachers do not use law and literature to teach the personal effects of the law. Perhaps more than in many other areas of law, the creation and inner workings of international legal structures, to say nothing of opinions rendered by international tribunals, have direct consequences in many African countries. A personal literary account of the horrors that generate the need for a truth and reconciliation commission, or an account of how corruption and tribalism can shatter a family or village will, for many students, teach more about the need for legal accountability than endless PowerPoint slides explaining acronyms of international legal tribunals. James Boyd White’s opinion on the mission of law and literature seems particularly apropos here; to teach us the personal side of the law, to empathize, and to direct “one’s attention to a plane or dimension of reality that is normally difficult or impossible to focus upon.”
Furthermore, American legal scholars are missing out on opportunities to remain grounded in the local when making legal or theoretical pronouncements about international legal structures. Some American scholars, in discussing international human rights law, for example, might primarily be concerned with the fundamental steps necessary to establish the opportunity for an American-style capitalist liberal democracy to flourish and fundamental rights that are in accord with American opinions. However, when considering the work of Ngugi, to give just one example, one is left with the impression that this is necessarily not the desired, or suitable, model. In other words, it is difficult to argue authoritatively what is needed without recognizing that fiction and literature has a part in teaching us what may be wanted. Discussing what international norms of fundamental rights are or should be must necessarily encompass what local values and perspectives are; ignoring African authors and literary accounts suggests we may be disregarding critical access to those viewpoints.
Dustin A. Zacks is an attorney in civil practice in West Palm Beach, Florida. B.A., University of Michigan, 2004; J.D., University of Michigan Law School, 2007. His most recent Article, comparing legal themes in the works of Ngugi Wa Thiong’o and V.S. Naipaul, was published in Volume 34, Issue 1 of the Northern Illinois Law Review and is available online at SSRN.com.